Submission from LAO to the Attorney General regarding the consultation on expanding legal services options for Ontario families (April 2016)

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1. Introduction

Thank you for inviting Legal Aid Ontario (LAO) to provide input in the Family Legal Services Review consultation, based on the consultation paper Expanding Legal Services Options for Ontario Families (“the consultation paper”).

The purpose of the review, as set out in the consultation paper, is to explore whether the delivery of family legal services should be expanded to include people who are not lawyers, such as paralegals, law clerks and law students. LAO is Ontario’s largest provider of family legal services, and has a statutory mandate to promote access to justice to low-income Ontarians. Each year, thousands of low-income people rely on LAO for legal information, advice and assistance, up to and including in-court legal representation, to address their family law issues. In carrying out its mandate, LAO is actively engaged in the design and delivery of innovative and responsive family legal services, including services that responsibly integrate the use of non-lawyers within the ambit of the current legal and regulatory framework, and as such is pleased to share its experience and its views on this important policy issue.

There is, and has been for some time, general consensus within the legal community that more needs to be done to address challenges in the family justice system and to make it more accessible to low and middle income Ontarians. It has been estimated that perhaps half1 of all persons in Ontario’s family courts may be unrepresented, most often because they are unable to afford the assistance of a lawyer.

Engaging non-lawyers in providing services in family law matters as a way to increase access to justice for Ontarians is a policy objective which has been supported in numerous reports, including the October 2013 final report of the Action Committee on Access to Justice in Family and Civil Matters, which recommended increasing the use of non-lawyer experts to address unmet legal needs and help fill the access to justice gap. The report recommended that:

Jurisdictions should expand reliance upon properly trained and supervised paralegals, law students, articling students and non-lawyer experts to provide a range of services to families with legal problems.2

LAO supports - and has been playing a fundamental role in introducing - family law reform initiatives that expand access and reduce the number of unrepresented litigants in family courts. LAO also believes that non-lawyers have a role to play in providing services to assist people who are dealing with family law problems. LAO is uniquely placed, given its organizational mandate, infrastructure and capacity, to play a major role in developing and implementing innovative access to justice solutions, including solutions that involve the use of non-lawyers. Indeed, LAO has been in the forefront in utilizing non-lawyers in the family law context, particularly within its Family Law Service Centres, where teams of service providers offer a full range of family law services. LAO has also successfully used non-lawyers in the criminal law context, where a recent pilot project has demonstrated the value of having licensed paralegals perform legal aid services as part of duty counsel office teams.

However, LAO wishes to emphasize that the complexity of many family law matters, the fundamental importance and consequences of these matters for all family members including children, the risk that family violence may be a factor, and the innate vulnerabilities of persons who are going through family dissolution, are such that great care must be taken in introducing, regulating, supporting and monitoring new types of services and service providers in this area of law. Consideration of all relevant evidence and factors, including through a consultation process such as this one, must be an important component of any such process.

LAO’s response to this consultation is structured in two parts. The first part provides information about LAO’s family law services, with an emphasis on LAO’s eligibility expansion initiative and specialized services that have been designed to respond to the need for increased access and more service delivery options, including early resolution options, for resolving a family law matter. The second part of LAO’s submission responds to the individual questions posed in the consultation paper.

2. Expanding access to justice: Improvements to LAO's family law services

Family law services are a core component of LAO’s statutory service delivery mandate.3 From its inception, LAO has offered family law services through both its certificate and duty counsel programs. These services are vital to the thousands of family law clients who are assisted through these programs each year.

Cutbacks to legal aid during the recession of the 1990s resulted in a scaling back of services that were previously available, and the erosion of the legal aid financial eligibility thresholds, which were not adjusted for inflation for nearly two decades prior to the introduction of LAO’s eligibility expansion initiative in November 2014, meant that more and more low-income people4 did not qualify financially for legal aid services. Services to family law clients, in particular, had been negatively affected by the cutbacks of the 1990s. LAO’s needs assessment work and an independent data analysis undertaken in 2012 to support an internal review of the impact of financial eligibility restrictions on low-income clients confirmed that families, and by extension family law clients (most of whom are women), had been hardest hit by these restrictions. In response to these findings, LAO developed a business case to the province for funding to increase the eligibility guidelines.

LAO had also committed, as early as 2007/2008, to a strategy to expand its range of family law services along a continuum that would make more services accessible to a larger number of people, based on the principle of triaging clients and matching client need to the appropriate service and service provider. Utilizing cost-effective service delivery methods, including telephone and internet-based technology, and concentrating on providing more “upfront” information and assistance, to help people deal with their problems before they escalate into costly litigation, were key components of this strategy, as was a commitment to identify and prioritize services to the most vulnerable clients, including victims of domestic violence.

In developing and implementing its continuum of services, LAO exemplified an approach that would later be recommended in the 2013 final report of the Action Committee on Access to Justice in Civil and Family Matters. The report recommended the provision of a “range of accessible and affordable services and options – in the form of a family justice services continuum” that would offer “an array of dispute resolution options to help families resolve their disputes”.5 The report also recommended allocating resources to expand early “front end” services such as information and mediation services, and providing access to triage services, including assessment, information and referral services.6 These were all features that were central to LAO’s own approach to improving access to family law services over the past eight years.

During these years LAO continued working, alongside the Ministry of the Attorney General (MAG) and other justice system partners, to increase access to family justice through new services that were focused on providing more early information and advice services and offering access to more affordable, less confrontational means of resolving family law issues. LAO received new funding from the province in 2009 that was dedicated to improving legal aid family law services and LAO used this funding to support several of its new initiatives:

Through its new call centre, accessible province-wide through a 1-800 toll-free line, LAO began offering up to 20 minutes’ of telephone legal advice from a family lawyer to financially eligible clients. As well, staff at the call centre were trained to assist callers in navigating online public legal information available from MAG, Community Legal Education Ontario, and other sources. LAO has continued to enhance its call centre services over time, and in addition to the aforementioned services now also offers enhanced public legal information services over the phone.

LAO introduced an online Family Law Information Program (FLIP), based on the Ministry’s Mandatory Information Program (MIP) and available to all Ontarians free of charge on LAO’s website, offering practical and legal information on a range of topics including custody, support, property settlements, dispute resolution and the family court process.

To complement MAG’s family mediation programs, LAO began providing mediation services at a number of locations, offering low-income clients the opportunity to work with a mediator to resolve child support, custody and access issues outside of court.

LAO opened its first Family Law Service Centres, providing a wide range of family law services in one location, offered by teams of staff lawyers and non-lawyer legal aid workers.

In 2013 LAO received three years of dedicated new funding ($10 million each year) from the Ontario government to further improve and strengthen its family law and poverty law services. LAO used the family law component of this one-time investment, now in its final year,7 to make improvements to existing family law services and to introduce new services, including:

Opening new Family Law Service Centres (FLSCs) and expanding existing FLSCs, bringing the number of FLSCs around the province up to ten.

Offering new certificate coverage for up to six hours of independent legal advice (ILA) assistance from a family lawyer for clients choosing mediation to settle their family matter. Clients can receive advice about the mediation process, assistance in preparing for mediation, and develop a better understanding of their options. The lawyer can also assist with obtaining a court order or binding agreement to enforce the terms of the mediation agreement.

Introducing new certificate coverage for separation agreements, providing up to ten hours of assistance with issues related to custody, access, child or spousal support, and division of property.

Increasing the number of certificate hours available for lawyers assisting parents involved in child protection proceedings.

Supporting the introduction of new family law services at six student legal aid clinics (Student Legal Aid Services Societies, or SLASS) located within Ontario law schools. Utilizing $2 million in new funding provided by LAO, the SLASS have been providing a variety of family law services, including some that are focused on vulnerable client groups and others that support holistic service delivery through working with community hubs or agencies, or by providing a combination of law and social work services.

Funding a three-year partnership with Luke’s Place, which is a centre in Oshawa that is devoted to assisting abused women and their children as they go through the family law process, to provide holistic, wrap-around services, including the assistance of a legal support worker, to clients who have experienced domestic violence.

An unprecedented new financial investment in legal aid in the 2014 provincial budget made it possible for LAO to implement an across-the-board 6% increase to the income cut-offs for legal aid eligibility in November 2014, marking the first increase to financial eligibility for legal aid in two decades. At the same time, financial eligibility for certificate applicants experiencing domestic violence was raised to the duty counsel eligibility thresholds, which are higher than the cut-offs for certificate eligibility. Two subsequent 6% increases to the income eligibility thresholds have been implemented since then, the first on April 1, 2015 and the second on April 1, 2016. These increases are part of a longer-term eight to ten year plan which, if fully implemented, would raise eligibility for legal aid to the standard of the Low Income Measure (LIM)8 maintained by Statistics Canada.

Eligibility for Certificate Services as of April 1, 2016: Based on Gross Family Income

Number of family members

Likely qualifies non‑contributory

Likely qualifies with a contribution agreement

Certificate eligibility for domestic violence clients

1

$12,863

$14,888

$21,438

2

$22,253

$26,798

$32,131

3

$25,367

$31,228

$36,921

4

$28,664

$35,873

$44,068

5

$31,817

$40,447

$50,803

Single boarders

$8,456

$9,766

$21,438

Eligibility for Duty Counsel and Summary Legal Advice Services as of April 1, 2016: Based on Gross Family Income

Number of family members

Income must be below

1

$21,438

2

$32,131

3

$36,921

4

$44,068

5+

$50,803

In June 2015, following an extensive stakeholder consultation process concentrated on identifying and prioritizing areas of unmet client need, LAO introduced a range of expanded legal services in the areas of family, criminal, immigration and refugee and mental health law. These initiatives were focused on expanding certificate eligibility for different types of legal matters, and were intended to complement and enhance the effectiveness of the increases to the financial thresholds. Expanded legal services that were introduced in family law at this time were:

Expanded certificate coverage for complex family matters, such as those involving multiple legal issues, a self-employed parent, Hague applications, matrimonial property claims for clients living on reserve, and mobility claims. Under the new guidelines certificates may also be made available where multiple parties are involved or the case involves parents under the age of 18, where the client self-identifies as First Nation, Inuit or Métis, has mental health or addiction issues, has literacy issues, has language barriers, is a teen or young adult, or is 65 years of age or older.

Coverage for third-party caregivers in child protection proceedings.

Certificates for negotiation and independent legal advice on customary care, temporary care and special needs agreements, and to facilitate participation in an Aboriginal alternative dispute resolution process (e.g., Talking Together or Talking Circles).

The impact of eligibility expansion in expanding client access to family legal aid services has been significant, as LAO anticipated. In 2015/2016, LAO experienced an overall increase of over 20% in certificates issued. LAO issued 30,185 family law9 certificates in 2015/2016, compared to 22,085 certificates the year before and 19,014 certificates in 2013/2014.

LAO’s vision for family law services is focused on making services accessible to more Ontarians, as early as possible in the process and through multiple access points and channels including telephone and internet-based services, one-stop locations like the FLSCs, and partnerships with multi-service “hubs” where clients are able to connect with and obtain assistance from social workers and other non-legal service providers.

3. LAO's responses to the consultation questions

Questions:

Q.1 What legal services are sought and provided in each type of family law case (e.g. divorce, custody and access), from beginning to end?

LAO provides family law services in the broad areas of custody, access, and support. Issues for which coverage is available include child support (including s.7 extraordinary expenses), spousal support, restraining orders, mobility issues, parental alienation, Family Responsibility Office (FRO) matters including default hearings and refraining motions, motions to change child support, custody and access and incidents of these, contempt and enforcement.

Clients often have questions about annulments, divorce and property matters, but LAO only provides limited advice in these areas. Divorce coverage is not available where there are no corollary issues present. LAO coverage is also unavailable for matters such as marriage contracts/cohabitation agreements, change of name applications, and changes to wills.

The specific legal services that are provided by LAO in areas where coverage is available depend on whether the client holds a legal aid certificate or is accessing duty counsel services, FLSC services, advice lawyer services or mediation services. A discussion of each of these service vehicles can be found below in the answer to Question 3.

For child custody, access and support matters, depending on the needs of the client and client eligibility, LAO provides a full range of services that include:

Importantly, not every client needs to go to court to resolve their matter and it is frequently better for family law clients and their children if the case does not proceed through litigation, provided there are other ways to reach an appropriate resolution. With this in mind, and in an effort to provide services to a greater number of people within a limited financial envelope, LAO has developed a service delivery model which places its services along a continuum in order to match service level with client need. At the same time, LAO has invested in the development of “front-end” services that encourage out-of-court resolution where appropriate.

The theory behind LAO’s continuum of service model is that a client’s needs will be matched with a service that allows the matter to be resolved as expediently and cost effectively as possible. This means that certificate services are reserved for the most complex cases or the most vulnerable clients. The approach of providing services along a continuum was echoed in the final report of the Action Committee on Access to Justice in Civil & Family Matters, which concluded that the justice system should widen its focus to include not only dispute resolution but also education and prevention. The committee identified the provision of a continuum of services as an appropriate and innovative means to achieve this goal:

…the justice system must be significantly enhanced so that it provides a flexible continuum of justice services, which includes court services of course but which is not dominated by those more expensive services. The motto might be: “court if necessary, but not necessarily court”.10

To support its continuum of services, LAO has developed assessment and triage protocols, including for domestic violence, that ensure appropriate referrals across its various service lines by intake staff.

Q.2 What family legal services are currently provided by a person other than a lawyer (e.g. paralegals, law students, law clerks), whether independently or under the supervision of a lawyer?

LAO does not currently offer independent (non-supervised) family law legal services provided by non-lawyers. All non-lawyer services that are of a legal nature are provided under legal supervision. Non-lawyer services at LAO may be provided by Legal Aid Workers (LAWs), by summer law students, or by articling students. The services that they may provide are outlined below.

Q.2.1 Legal Aid Worker (LAW) Services

LAWs are non-legal service providers who provide services to LAO’s clients in the areas of criminal and family law. Currently, 23 LAWs (out of a total 53 staff) are employed at LAO’s ten FLSCs across the province. LAWs are not required to be paralegals or law clerks, as LAO provides them with subject matter training, but in the area of family law significant law clerk experience in family law and knowledge of relevant family law legislation are considered assets in the hiring process. A significant number of LAWs working in family law are, in fact, licensed paralegals who are not exercising their licences at this time. LAO believes that having a paralegal license is valuable for a LAW, because of the baseline level of knowledge provided. The family LAWs report to lawyer managers and are responsible for providing legal administrative support to lawyers at the FLSCs. They prepare and file family court documents, assist with financial assessments, provide procedural information, take legal aid applications and triage clients to the appropriate LAO service, collect information and help to maintain LAO’s client databases.

Q.2.2. Summer Student Services

Each year, LAO employs summer law students, who may be assigned to duties at any of LAO’s district offices or in a staff office or FLSC. LAO’s summer law students who are providing family services are primarily engaged in drafting family court forms under the supervision of staff lawyers or lawyers working as per diem duty counsel. They may also conduct legal research, and attend court appearances to observe and shadow staff lawyers and duty counsel. Additionally, they may participate in client meetings or draft correspondence, under the supervision of a staff lawyer. Some also conduct public legal education sessions about family law.

In every family law case that a summer student assists with, he or she is directly supervised by a lawyer licensee who has ultimate carriage of the file. Summer law students receive training from counsel and are required to shadow counsel prior to speaking to matters.

In some jurisdictions, summer law students assisting with family legal matters may occasionally appear at the Ontario Court of Justice with the knowledge and consent of the judiciary, although they are not permitted to speak unless the supervising lawyer believes that they are competent to do so. In most cases, the supervising lawyer is present in court with the summer law student; the exception to this rule is when the student attends First Appearance Court/Rule 40 Court to address the Clerk.

Q.2.3 Articling Student Services

LAO has developed its own articling student program to include training within family law. This helps to spark the interest of new lawyers to practice in this area and provides them with experience that prepares them for careers as family lawyers.

In addition to providing the same types of services that are provided by summer students at LAO, articling students may also:

Assist in drafting applications, affidavits and motions

Prepare lists of cases and summaries of cases for duty counsel

Prepare and file court documents

Attend court and client appointments

Prepare case reports

Q.2.4 Other Programs that Involve Law Students in Providing Services to Family Law Clients

The following two programs are not LAO services, but are included here due to their innovative use of law students to provide assistance to clients in the area of family law. LAO provides support to both of these programs.

Law Student Services Provided Through Pro Bono Students Canada’s Family Law Project

The Family Law Project (FLP) is operated by Pro Bono Students Canada (PBSC). Through the FLP, which has been operating in Ontario since 1997, PBSC in partnership with LAO provides up to 100 Ontario law students each year with supervised volunteer placements in eight courthouses located in Toronto, Brampton, Newmarket, London, Windsor and Kingston. The student volunteers work under the supervision of duty counsel and advice lawyers. Each year they assist approximately 12,000-15,000 unrepresented family litigants who are ineligible for legal aid. Their work includes providing legal information, interviewing clients and assisting them in completing court documents in the areas of custody, access and child support. The students do not provide legal advice and do not work on minutes of settlement or court orders.

Law Student Services Provided Through SLASS Family Law Programs

Each Ontario law school has a Student Legal Aid Service Society, or SLASS. Although funded by LAO, the SLASS do not provide legal aid services directly through or for LAO. SLASS services for financially eligible clients are usually provided by a combination of employed law students (during the summer months), students who are registered in a for-credit clinical education course, and law student volunteers, all of whom are closely supervised by lawyers. The SLASS help to introduce future lawyers to areas of legal aid practice including criminal law and, more recently, family law. Beginning in 2014, six SLASS received three years of dedicated new funding from LAO to support the provision of family law services. The model adopted by each SLASS differs in some respects, but each SLASS program includes the provision of information, summary advice and document preparation assistance to clients whose family law issues include custody, access, child support, spousal support and restraining orders. SLASS students also assist with negotiation and may represent clients at mediation and in court, where possible.

Q.3 What family legal services are covered by legal aid? What family legal services are provided by duty counsel?

This section summarizes LAO’s services in the area of domestic family law. LAO delivers its family law services across the province through a wide range of service providers, programs, and service channels.

Q.3.1 Legal Aid Certificate Services

Eligible, low-income Ontarians can apply to LAO for a legal aid certificate to receive representation by a private bar lawyer (or a lawyer at a Family Law Office or FLSC) in relation to domestic family law matters such as child custody and access, child support, and restraining orders. Certificates are also issued for child protection matters. Certificate services are provided to eligible clients who have complex, contested cases or who are particularly vulnerable. As of June, 2015, certificates are now also available for separation agreements and for independent legal advice (ILA) to support clients who choose mediation services to address their family law issue. In 2015/2016, LAO issued 30,195 family law certificates. Included in this number were 2,882 certificates for separation agreements and ILA, and 6,247 child protection certificates. 13,196 of the family law certificates that were issued in 2015/2016 were provided to clients who have experienced domestic violence.

Q.3.2 Duty Counsel Services

Duty counsel services are available to financially eligible clients at family law courthouses across the province. In fiscal year 2015/2016, 177,014 duty counsel assists were provided to family law clients, including 79,139 summary advice assists, 26,408 dispositive assists (assists that help to move a case forward to another stage, for example by obtaining a consent order or arguing an emergency motion), and 72,467 assists that were non-dispositive in nature (for example, document preparation assists).

Depending on local practice, duty counsel may cover custody, access, child support, and spousal support, up to the trial stage. They are able to provide information and advice, assist clients with document preparation, negotiate interim or final settlements and prepare Minutes of Settlement based on negotiations, speak to adjournments, obtain consent orders, argue simple motions, and assist in non-complex, uncontested hearings regarding custody, access, and support. They may also provide limited advice regarding property matters, restraining orders, and FRO matters.

Generally, duty counsel do not prepare separation agreements or review them, except for the purpose of providing limited advice, as there is usually insufficient disclosure available to duty counsel to fully evaluate the issues.

An Enhanced Duty Counsel initiative was established by LAO beginning in 2010 to provide a broader range of duty counsel services through inter-professional teams that include paralegals and articling students, in order to increase continuity of service to duty counsel clients, minimize court appearances, and facilitate earlier resolution of legal issues.

Meantime, in LAO’s three Expanded Duty Counsel locations (in Hamilton, London and Oshawa), in addition to providing the enhanced duty counsel range of services duty counsel also have an expanded capacity to create and carry client files in order to provide continuous representation.

Q.3.3 Advice Lawyer Services

LAO advice lawyers located at MAG’s Family Law Information Centre (FLIC) offices in Ontario courthouses provide summary legal advice to individuals with family law matters who are not scheduled for court on the day of their attendance. In locations without a FLIC, advice lawyers are available during specified hours at the courthouse or at a local community centre or the LAO district office.

In general the advice lawyer may provide an individual with up to 20 minutes of information on court processes and related general advice on family law matters. This may include:

advice about the role of counsel and how to choose a lawyer

referring and advising clients about other sources of legal and non-legal assistance

Financial eligibility testing may be conducted where the advice lawyer wishes to refer the client to other legal aid services. Case specific advice may also be provided to financially eligible clients.

In 2014/2015, across the province, more than 93,000 people were provided with summary legal advice at family court.

Q.3.4 Staff Services at Family Law Service Centres (FLSC) and Family Law Offices

Across the province, LAO has twelve staff offices that provide family law services. There are ten FLSCs11 plus two other staff offices12, offering legal assistance to financially eligible clients with family law issues including but not restricted to custody, access, support, child protection and restraining orders. While each FLSC location differs in some respects, each employs the basic staff structure of a lawyer manager, staff lawyers and LAWs working together to serve clients. Services available through FLSCs may include document assistance, referrals (including referrals to advice lawyers and social service agencies), mediation and settlement conferences, and taking certificate applications for complex family law cases, domestic violence cases and child protection cases. Some centres provide full legal representation to clients who are eligible for certificates.

Q.3.5 Advice Lawyer - Family Violence Two Hour Authorization Program

This program enables financially eligible domestic violence survivors to meet with a lawyer of their choice (from a list of available lawyers on LAO’s domestic violence panel) and receive up to two hours of free legal advice related to family law or refugee and/or immigration law matters. In 2015/2016, 2,160 clients were provided with assistance through these two-hour consultations.

Q.3.6 Telephone Summary Legal Advice Services

Financially eligible clients can speak with a family lawyer on the telephone for up to 20 minutes by calling LAO’s toll-free number. Summary legal advice (SLA) lawyers can provide an opinion on the best legal options for the next steps in a family law case, and are trained to provide support to callers who are experiencing domestic violence or mental health issues. Advice can be provided on a broad range of issues including separation, divorce, custody and access, child or spousal support, changing an existing court order through a motion to change, choosing mediation, and the family court process. Referrals are also provided through the SLA program, including to legal clinics, community agencies and the agencies that support court services. In 2014/2015, 18,862 callers received family law legal advice through this program and in 2015/2016, that number increased substantially to 26,855.

Q.3.7 Enhanced Public Legal Information

Through its Enhanced Public Legal Information (EPLI) Program, non-lawyers working at LAO’s call centre are trained to provide and interpret basic information on a wide variety of family law issues and to refer callers to various legal aid and non-legal aid programs. They are able to provide assistance and information in relation to non-urgent or non-complex areas including mediation, family court processes, getting started on family court forms and getting documents ready to go to one of LAO’s FLSCs for further assistance with document preparation. They can help callers to understand court processes and available options, including alternatives to going to court. They can also provide callers with assistance on how to find a lawyer.

Q.3.8 Community Partnerships and Hub Services

LAO has entered into partnerships with a number of community hubs to offer family law services to clients in an integrated setting where clients are able to access other legal and social services. These partnerships enable clients to address their intersecting needs in a holistic way and at a one-stop location. Family law services that are provided by LAO at hub locations, including at the Rexdale Community Legal Clinic and the Davenport-Perth Neighbourhood and Community Health Centre, include summary advice, preparation of court documents, referrals to mediation and referrals to services provided by other hub partner agencies. LAO’s partnership with Luke’s Place in Oshawa to provide wraparound services to victims of domestic violence is another example of holistic service delivery, as is LAO’s own Integrated Legal Services Office (ILSO, formerly known as the Ottawa Family Law Office), which offers one-stop help with a variety of matters, including immigration and refugee law matters, in addition to family law assistance.

Q.4 Which legal service offerings (e.g. conducting legal research, preparing correspondence, appearing in court, etc.) could improve the family justice system if they were more widely available?

All legal service offerings could improve the family justice system if they were more widely available, affordable and accessible to the end users. This includes more access to legal aid services through expanded financial and legal eligibility as well as more affordable “unbundled” legal services options, including some services that may be provided by or with the assistance of non-lawyers, for litigants who do not qualify for legal aid as well as in areas where legal aid does not currently provide coverage (an example of an area where legal aid coverage is not currently available is simple, uncontested divorce).

Non-lawyer support services that could help to increase the affordability and accessibility of legal representation (and allow lawyers to more cost-effectively concentrate on the more complex aspects of a case) might include preparing correspondence, following up on matters with a client, assisting with obtaining reports and other supporting documents for the client’s case, preparing documents, meeting with clients and reviewing documents with them, and speaking to routine consents and adjournments. Lawyer support services provided by supervised non-lawyers might also include case law research and preparation of factums for motions.

The family justice system could also be improved by the provision of more public legal information and referral services. Non-lawyers can play a useful role in providing unrepresented litigants with appropriate referrals and helping them to understand legal information and navigate the family court system.

Additionally, non-lawyers can play an important role and fill an existing service gap by supporting and providing continuity of service to vulnerable family law clients and clients with special needs who may require more time and attention. This can be especially important where the client has intersecting issues and ongoing problems that fall outside the area of family law.

Q.5 If an appropriate framework is put in place, should persons other than lawyers, such as paralegals, be permitted to provide legal services in certain family law matters?

The debate around the potential use of paralegals in providing family law legal services is not a new one, and LAO has long been aware of the issues and concerns in this area. In the 1997 Report of the Ontario Legal Aid Review (“A Blueprint for Publicly Funded Legal Services”), the risks - and the potential opportunities - were set out succinctly by Professor John McCamus:

Family law is a particularly problematic area for independent paralegals. Legal problems in family law are highly complex, volatile, and of extraordinary importance to the parties involved. The lack of accountability and quality control of independent paralegals poses very real risks to family law clients, who are very often themselves unlikely to fully appreciate or understand the complexity or long term consequences of their legal issues.

Supervised paralegals, however, could assume a much larger role in the delivery of legal aid family law services, particularly in Staff Offices and in an expanded duty counsel office. Many private counsel use paralegals for a range of family law tasks. It may be possible to encourage an increase in the use of paralegals by private counsel in the delivery of legally aid services - for example, in the initial interviews with clients and/or intake - and thereby make use of lawyer's time on a certificate more efficient.13

A decade later, in the Report of the Legal Aid Review 2008, Professor Michael Trebilcock noted that LAO had successfully used paralegals in its staff offices, and added that, given the recent assumption of responsibility for regulating paralegals by the Law Society of Upper Canada (LSUC), there was more that could be done to fully utilize their services where it was “appropriate and cost-effective”14 to do so:

Paralegals are an important current source of legal assistance in the provision of legal aid services and it is incumbent on LAO and the LSUC jointly, going forward, to ensure that all potential opportunities for full utilization of the invaluable human resources they offer are maximized.15

The Law Commission of Ontario’s 2013 report, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity, acknowledged that there are valid concerns about paralegals providing services in family law, but argued that these should not be considered absolute barriers:

Lawyer organizations raise a valid concern about the extent to which a person not trained as a lawyer can provide meaningful assistance in the case of family breakdown. Paralegals, however, can and do play a well-developed role in providing access to justice. Currently, they provide representation in small claims court, traffic court, tribunals such as the Landlord and Tenant Board or the Workplace Safety and Insurance Board and they can represent individuals in the Ontario Court of Justice on minor criminal charges. In a number of these areas, they must be familiar with a number of different statutes and regulations to properly represent their clients. Moreover, some of the administrative tribunals that paralegals work in are as complex in their structure and procedural rules as a court. Some of the work they do engages issues which have grave consequences for the welfare of their clients. In landlord and tenant matters, a person’s housing is at stake. In social benefits matters, the success or failure in a matter will make a tangible difference to the quality of life of the claimant. Paralegals also can work closely with lawyers which can reduce the cost to the client.16

The report concluded that:

There may be many tasks that a lawyer performs in a family law matter that can be competently done by a paralegal with training and experience, either in a stand-alone fashion or in some form of symbiotic relationship with lawyers.17

LAO is committed to increasing access to justice for clients in all areas of law and continues to be open to new ideas and approaches in family law. As noted in the McCamus Report and the Trebilcock Report, LAO has for many years successfully employed paralegals in the staff office context. LAO’s recent experience in expanding the roles of licensed paralegals as members of inter-professional teams in criminal duty counsel office locations (through the Criminal Law Paralegal Pilot Project, described in the response to Question 7, below) has convinced LAO that licensed paralegals are capable of increasing the quality and quantity of services provided to clients, and that they can do so in a cost-effective manner. Accordingly LAO believes that with the proper safeguards and an appropriate framework in place, persons other than lawyers, such as paralegals, are capable of providing - and should be permitted to provide – some legal services in certain family law matters.

Q.6 If yes:

It is important to clarify that not all non-lawyers will be able to provide the same kinds of legal services; services that are or may be provided by a law student will differ, particularly in some respects, from services that might be provided by a paralegal or law clerk. Generally speaking, and based in part on our own experience with law students and LAWs in the area of family law, LAO believes that, with appropriate supports, supervision and safeguards in place, non-lawyer service providers should be able to interview clients, prepare and file family court documents, provide information and procedural advice, and speak to routine administrative matters in court.

For example, LAWs working at the FLSCs are currently responsible for client intake and assessment (identifying vulnerable clients and determining the appropriate service or referral path for clients), and they assist in preparing family court documents (including documents for changing final support orders, substituted service motions, applications and answers, and other documents required under the Family Law Rules) under the supervision of a lawyer. They provide procedural advice and also interview and work with clients in order to gather necessary information and documentation.

Summer law students and articling students at LAO may provide similar services. They also may conduct legal research, draft correspondence, prepare and file court documents, and may sometimes appear in court where this is permitted.

Supervised law students who are participating in the LAO-funded family law services programs at the six SLASS where these services are being offered are assisting clients with summary advice, negotiation, and document preparation. Some also represent clients at mediation and in court, where possible.

in which types of family law matters (e.g. divorce, custody and access)?

Depending on the safeguards established and the level of supervision (or independence) involved, non-lawyers should be able to provide certain services for most types of family matters. Making distinctions between various types of family law matters may be less important than focusing on the specific types of services which non-lawyers may properly provide, in an environment that offers supervision and support. As noted, LAO is already using supervised non-lawyers to provide services and assist lawyer service providers in the family law context.

LAO cautiously suggests that licensed paralegals may in the future be able to provide unsupervised or relatively unsupervised family law services in certain areas as part of inter-professional teams, although in the absence of an established regulatory framework and educational requirements for paralegals in family law LAO is not able to provide a firm recommendation as to what the nature and extent of those services should be, or in what specific areas. However, paralegals may be able to assist clients in less complex matters such as a straightforward, undisputed guideline support matter or an uncontested divorce (based on living apart for one year), where there are no outstanding issues. Non-lawyers may also be able to work relatively independently on non-complex motions to change child support, as well as on interjurisdictional support order (ISO) matters, refraining orders and change of name applications.

It is important to note that some matters may appear non-complex at first but reveal complexity as time goes on. When this occurs, it is likely that the matter concerned would need to be referred to a lawyer.

Safeguards for Law Students:

There are good programs currently in existence that enable law students to provide services to family law clients within the context of a supervised environment that offers training, experiential learning and oversight. In all of these programs, the law students are supervised by and have access to the support of lawyers.

LAO’s own organizational structure and capacity enable it to directly train, supervise and provide shadowing and hands-on opportunities to its law students and articling students working in family court locations and FLSCs. In addition to working under the supervision of lawyers and receiving on-site training, LAO articling students who work in the area of family law attend a two-day course that focuses on drafting training for family court (the same program has been made available to LAO’s LAWs working in family law). The course includes an overview of the Family Law Rules and “top ten” most commonly used forms, as well as covering interviewing techniques and affidavits, procedural motions, child support and motions to change, refraining motions, and FRO matters.

PBSC’s FLP offers training and experiential learning opportunities that include having FLP law student volunteers shadow LAO duty counsel and advice lawyers. FLP summer students attend a three-day program that is delivered by PBSC staff, LAO Supervisory Duty Counsel and guest speakers who have expertise in relevant topics. The students receive training in substantive family law, family law procedure, court procedures, legal drafting, working with clients (including low-income, vulnerable clients, clients experiencing mental health issues and clients who have experienced domestic violence) ethics and professionalism, and the difference between legal information and legal advice. School-year volunteers attend the equivalent of two days of training. FLP students are also provided with two reference manuals.

The LAO-funded family law programs at the SLASS provide a third example of supervised experiential learning for law students in the area of family law. All of the SLASS family programs provide training in substantive family law, procedure, oral advocacy, legal drafting, file management, the Rules of Professional Conduct, and working with vulnerable clients.

As a result of its support for law students providing family law services through the SLASS, LAO has had recent experience in working with justice system partners to identify and establish appropriate parameters and safeguards for law students providing family legal services. In June, 2015, following a process that included working with LAO, PBSC and the SLASS, the LSUC amended its by-laws to clarify that they enable experiential learning by law students, provided that the students are adequately supervised. The by-law amendments clarify that students are permitted to provide legal services at SLASS, legal clinics, and PBSC programs, on the condition that they are directly supervised by a lawyer licensee.

To further support the SLASS family law initiative, LAO also worked with the SLASS and the Office of the Chief Justice – Ontario Court of Justice (OCJ) to develop guidelines for students appearing on family law matters in the OCJ in Toronto and Windsor. These guidelines were finalized in August 2015 and allow the law students to appear in the OCJ, at judicial discretion, on condition that:

The supervising lawyer/SLASS must be counsel of record and will directly supervise law students

These student programs are now well established and by all accounts they are successful. The PBSC program, in particular, has received many accolades. LAO believes that the parameters and safeguards that currently exist for law students providing services in the area of family law are appropriate.

Safeguards for Paralegals:

The issue of education, training and oversight/enforcement of paralegals is central to the question of paralegals providing family law legal services. In his 2012 report to the Attorney General, David Morris was reluctant to recommend broadening the scope of paralegal practice in light of concerns expressed to him about “the current paralegal education and training regime and standards of professional conduct”.18 One of the major conclusions of the Morris Report was that “[o]pportunities should continue to be sought to broaden the scope of paralegal practice, but in lock-step with improvements in the standards of learning, professional competence and professional conduct of the paralegal sector.”19

Since then the LSUC has strengthened the standards of learning for paralegal students. They have increased the intensity of the Licensing Exam to include substantive material and it is now a full-day event, as opposed to a half-day exam. In 2014 the LSUC also made colleges offering paralegal programs subject to more strenuous audit and compliance procedures, and the colleges have been required to re-apply for accreditation. As a result, some “problem” schools did not re-apply, and the others have increased their standards significantly.

If the scope of paralegal practice is broadened to include family law, family law will obviously need to be included as an essential part of a paralegal’s formal education. Most paralegal education programs at post-secondary institutions are two-year (or accelerated equivalent) diploma programs, with the notable exception of the Bachelor of Applied Arts – Paralegal program at Humber College, which is an eight-semester degree program. LAO in general favours a longer and more intensive paralegal education experience, and strongly supports lengthening paralegal training programs if they are expanded to include family law. Further, based on its own experience, LAO believes that paralegal students benefit from the added life experience and skills that result from exposure to some form of additional post-secondary education, and therefore suggests that an entrance requirement of two years of college or university would be beneficial.

Post-secondary paralegal programs should include a focus on working with vulnerable clients, including clients who have experienced domestic violence, so that paralegals will be equipped to make connections for clients and provide them with appropriate information and referrals as well as direct assistance. In LAO’s experience with LAWs, being able to work with vulnerable clients has proven to be a particularly valuable skill. Appropriate supervised experiential learning opportunities in the area of family law should also be made available to paralegals as part of the education process, as they currently are to law students.

It is important to note that formal education credentials in and of themselves do not guarantee the provision of quality services. Ongoing quality assurance safeguards for paralegals that might be considered include the establishment of service standards and routine monitoring, such as through regular reporting, testing, observation or file reviews. Paralegals providing criminal law services in LAO’s Criminal Law Paralegal Project are subject to regular quality service observation and reviews that cover the paralegals’ substantive legal knowledge, procedural abilities, teamwork and advocacy skills. Non-lawyers providing EPLI services through LAO’s call centre are also routinely monitored and scored.

Additionally, LAO believes that ongoing “on the job” training and career development opportunities are important for non-lawyers including paralegals. All LAO staff receive domestic violence awareness training. Non-lawyers providing EPLI for LAO receive four days (25 hours) of training from LAO that covers topics including family court structure and procedure, starting an application, completing financial statements, serving and filing documents, answer and reply, motions, case conferences, FRO and ISO matters. The training includes case studies and role-play job practice (based on scenarios) as well as lecture-based instruction. LAO provided all of its staff paralegals appearing in criminal court as part of the LAO Criminal Law Paralegal Project with three days of criminal law training including a full day “scope of practice” training. Paralegal supervision training was also provided by LAO to the lawyers who would be supervising the paralegals as part of this project. The staff paralegals were required to complete an intense (minimum of one month) shadowing period with an experienced lawyer mentor before they were allowed to start exercising their license. LAO found that this hands-on training was crucial to successfully integrating the paralegals into the inter-professional teams.

Q.7 Should other people as well as lawyers provide legal aid services? What role could these people play?

LAO has been providing legal aid services through non-lawyer service providers for a number of years. In addition to supervised articling students and summer law students who may be assigned to work in staff offices or duty counsel office locations, supervised paralegals have an established history of working in LAO staff offices, including duty counsel offices, that provide legal aid services. They perform a range of functions from administrative work (such as intake and file maintenance) to more substantive lawyer support work (for example interviewing clients, gathering information, and contacting and interviewing sureties) to direct client service delivery (including through document preparation and, where permitted – such as in the context of immigration and refugee law – advice and full client representation). Additionally, paralegals have a long history of making valuable contributions in the area of poverty law within the community legal clinic system, where they have historically gone by the designation of “Community Legal Workers” (CLWs), carrying out a broad range of functions including community outreach and development work, public legal education, summary advice, and client representation before administrative boards and tribunals.

LAO’s experience is that the staff office/clinic model has provided an ideal environment for non-lawyers to work alongside and under the supervision of lawyers as part of inter-professional teams capable of providing a full range of legal aid services to clients.

As noted, LAO’s non-lawyer legal aid services have always been provided under the supervision of lawyers. However, following the introduction of the LSUC’s new paralegal regulatory framework, LAO began to explore potential opportunities for expanding its use of paralegals, bearing in mind the needs of clients, the permitted scope of paralegal practice, and the need to ensure that all legal aid clients receive high quality and cost-effective services. The new licensing framework went some distance to allay LAO’s concerns about quality and consistency of service provided by independent paralegals, as it included a mandatory training and accreditation process. However, LAO’s approach was cautious. A pilot project focused on licensed paralegals providing a wider range of services within their permitted scope of practice as part of inter-professional legal services teams in criminal duty counsel offices was launched in 2014.

Prior to the launch of the project, LAO employed approximately 35 paralegals in its criminal offices across the province. However, these paralegals operated as non-licenced LAWs and worked only under the direct supervision of lawyers. Their roles were – and continue to be – varied, from administrative duties like filing and office work to carrying out routine adjournments in set-date court under the supervision of a lawyer. None were employed to exercise their licence without supervision of counsel.

Five licensed paralegals working as LAWs were identified as candidates for the new project at four criminal duty counsel locations around the province. They were all required to have a minimum of two years’ prior criminal experience working as LAWs. They were provided with training, mentorship, and management supports. Quality assurance tools, including monthly peer mentorship meetings, ongoing substantive legal training, monthly quality review observations by their managers, and daily reporting of their activities into a newly developed “Paralegal Portal”, ensured that quality client service was provided throughout the process.

In March 2014, the paralegals were officially seconded to their new roles. Over the course of the year since, each paralegal took on new work in accordance with their skills, the availability of work and local staff supports. By February 2016, all five of the paralegals were permanently assigned to one of three new roles that have been developed:

“Specialist” paralegals: paralegals who, based on their background and training, are able to provide more comprehensive services for an identified vulnerable client group. The Specialist follows cases through the criminal system, providing continuity of contact and service in specialty courts such as mental health court or Gladue court (for example, assisting with diversion) or assisting these same clients in Provincial Offences Court.

“Traditionalist” paralegals: paralegals who support duty counsel in all aspects of duty counsel office matters, integrated as part of the duty counsel team and acting within scope (for example, providing summary legal advice or doing guilty plea preparation for summary conviction matters).

“Hybrid” paralegals: paralegals who take on matters in “specialist” courts such as Gladue Court, and who also support their office in a “traditionalist” role.

Between April 2014 and May 2015, there was significant expansion of “within scope” services provided by paralegals at the project sites: there was a sixfold increase in withdrawal of all charges, diversions doubled, and the provision of summary legal advice and information virtually doubled. Surveys of LAO staff working with the paralegals in their new roles at the project sites confirmed that administrative staff and duty counsel felt that they were able to assist more clients and to provide more substantive or comprehensive services than before. One respondent indicated:

Because of the paralegal project I am able to spend more time with clients and give more substantive legal advice. I work in a very busy courthouse so being able to split our lists is extremely helpful to both me and the clients. It frees up more time for me to deal with clients and to provide legal advice and speak with the Crowns.20

The “Specialist” role, in particular, was felt to enhance the quality of client service, as evidenced by this feedback from another survey respondent:

Our office has a paralegal who has provided exceptional service to the vulnerable client population. When the Canadian Mental Health Association is unable to assist a client, the paralegal in our office intervenes as long as the client’s criminal charges fall within her scope and mandate.21

The criminal law paralegal project has demonstrated to LAO that licensed paralegals, provided with support and mentorship, can deliver a range of high quality services to clients and become valuable members of inter-professional legal service teams. The results of the pilot established that the expanded use of licensed paralegals allows clients to be provided with more comprehensive services, and gives duty counsel more time to work with clients on more complex matters. The pilot study has also shown that employing paralegals is most effective in the following circumstances:

Where the courthouse has a relatively high volume of clients;

Where the licensed paralegal is experienced (with a minimum of 2 years’ experience as a LAW) and has solid pre-existing relationships in the courthouse with staff and stakeholders;

Where the paralegal is willing to undergo substantive hands-on legal training with extensive mentoring and training both in and out of court;

Where management is willing to mentor and provide increased hands-on support for the paralegal; and

Where an additional LAW is available to take on administrative duties so that the licensed paralegal can focus on paralegal work rather than administrative work.

LAO believes that the Criminal Law Paralegal Pilot Project is a promising indicator of the potential that properly trained and supported licensed paralegals have for providing a wider range of services as part of inter-professional legal services teams. LAO is currently working on the second phase of this project, which will involve developing an additional five paralegals starting in June 2016.

It should also be noted that, for some time, LAO’s Toronto-based Refugee Law Office (RLO) has successfully integrated non-lawyers in the provision of services to vulnerable refugee clients. The RLO is a staff office that offers services through teams of legal services providers including lawyers, licensed paralegals and LAWs. The staff complement at the RLO currently includes seven LAWs and three licensed paralegals, whose work includes conducting detention reviews and hearings before the Refugee Protection Division of the Immigration and Refugee Board.

Q.8 Do you think there are certain types of family law cases or issues that would not be suitable for persons other than lawyers to provide?

Determining which types of family law cases or issues are suitable for non-lawyers will be dependent on the safeguards that are established and on how those safeguards are implemented. Changes to education, training and regulations would all be required before non-lawyers are able to provide unsupervised or relatively unsupervised family law services.

As the legal complexity of a matter increases, it is less likely that non-lawyers will be able to provide substantive or unsupervised legal assistance. Further, the more far-reaching the consequences become for the client (as in contested matters, particularly those that involve custody of or access to children), the more care must be taken in safeguarding competence and quality of service.

Within the context of the foregoing remarks, in LAO’s opinion it would not be suitable for persons other than lawyers to have sole carriage of and to provide representation in court (unless there is oversight by a lawyer) on contested custody and access matters, matters that raise mobility issues or parental alienation, restraining orders, summary judgement matters or contempt matters.

Q.9 Are there any promising models in other jurisdictions in Canada or abroad that Ontario should consider, with respect to the role of family law legal service providers, other than lawyers?

In addition to referring to LAO’s own experience with non-lawyer services, including services provided through the Criminal Law Paralegal Project, Ontario may wish to look at how other legal aid plans in Canada utilize non-lawyers in providing services in the area of family law. In particular, Alberta, British Columbia, and Nova Scotia have integrated non-lawyers into their family law service models:

Legal Aid Alberta’s Family Law Offices employ non-lawyer Family Resource Facilitators who work as part of a legal team to provide services to family law clients. The Family Resource Facilitators work with clients to identify issues and options, provide information and referrals, and help to ensure that clients understand the legal process for their matter and what is expected of them.22

In Nova Scotia, family support assistance is provided through a non-lawyer support worker who acts as the first point of contact for family law clients at Nova Scotia Legal Aid’s Dartmouth office. The support worker assists lawyers with legal aid cases, gathers information from clients, and prepares legal documents, as well as referring clients to other service providers to assist with their non-legal needs.23

In British Columbia, the Legal Services Society (LSS) has employed paralegals in various capacities, including providing assistance to clients calling its telephone legal advice service, and has recommended using supervised paralegals to expand access to family law services by providing information and advice, assisting with court forms, providing education and outreach services, and – in appropriate cases – taking conduct of files.24 The LSS also recently participated in a pilot project that involved supervised paralegals appearing in family court on non-contentious procedural matters.

In the state of Washington, the LLLT Program has created a process for the integration of non-lawyers into inter-professional teams to address issues of access to justice in family law, much as LAO has done with paralegals in criminal law. The LLLT requires 3000 hours of training as apprentice to a lawyer and substantial legal education specific to the field of practice to qualify LLLTs to practice in family law in Washington.

The program allows people who meet the licensing requirements to set up limited practices, establish fees for their services, operate independently (without attorney supervision) and provide a range of assistance, including: individualized information regarding court procedures; reviewing documents and completing forms; performing legal research; drafting letters and pleadings; advising clients as to necessary documents and explaining how such documents or pleadings may affect the client’s case. Unless specifically permitted, an LLLT may not represent a client in legal negotiations, in court, in formal administrative proceedings or in other formal dispute resolution processes.25

4. In closing

Thank you for the opportunity to provide input in the Family Legal Services Review consultation on expanding Legal Services Options for Ontario Families. Should you have any questions or wish to discuss further, please let us know.

Footnotes for section 2. Expanding access to justice: Improvements to LAO's family law services

A study conducted for LAO in 2012 showed that, while nearly all Ontarians with incomes below Statistics Canada’s Low Income Measure would have qualified for legal aid in 1996, only half of these low-income Ontarians would qualify in 2012.Back to report

Footnotes for section 3. LAO's responses to the consultation questions

Family Law Service Centres are located in Chatham, Newmarket, Peel, Oshawa, Sarnia, Toronto (North), Toronto (Central),Thunder Bay, Welland, and Windsor. Back to report

LAO has two family law staff offices, located in Ottawa and Thunder Bay. In 2013 Ottawa’s Family Law Office was renamed the Integrated Legal Services Office to reflect the fact that, in addition to traditional family law services, a wider range of services was being made available to clients. The expanded services include assistance with immigration and refugee matters.Back to report

Legal Aid Ontario (LAO), an independent but publicly funded and publicly accountable non-profit corporation. None of this material may be commercially reproduced, but copying for other purposes, with credit, is encouraged.

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Legal Aid Ontario (LAO), an independent but publicly funded and publicly accountable non-profit corporation. None of this material may be commercially reproduced, but copying for other purposes, with credit, is encouraged.